When Libertarian Judges Rule

Prominent libertarian jurist Alex Kozinski has been accused of sexual harassment by six women, all of them former clerks or employees. One of the women is Heidi Bond. In a statement, Bond gives a fuller description of Judge Kozinski’s rule, sexual and non-sexual, in the workplace.

One day, my judge found out I had been reading romance novels over my dinner break. He called me (he was in San Francisco for hearings; I had stayed in the office in Pasadena) when one of my co-clerks idly mentioned it to him as an amusing aside. Romance novels, he said, were a terrible addiction, like drugs, and something like porn for women, and he didn’t want me to read them any more. He told me he wanted me to promise to never read them again.

“But it’s on my dinner break,” I protested.

He laid down the law—I was not to read them anymore. “I control what you read,” he said, “what you write, when you eat. You don’t sleep if I say so. You don’t shit unless I say so. Do you understand?”

The demands may seem peculiar, but the tyranny is typical. Employers control what workers read, when workers shit, all the time.

But Judge Kozinski has the added distinction of being one of the leading theoreticians of the First Amendment. And not just any old theorist but a libertarian theorist—he has a cameo in the film Atlas Shrugged: Part II—who claims that the First Amendment affords great protection to “commercial speech.”

Where other jurists and theorists claim that commercial speech—that is, speech that does “no more than propose a commercial transaction”—deserves much less protection than political or artistic speech, Kozinski has been at the forefront of the movement claiming that the First Amendment should afford the same levels of protection to commercial speech as it does to other kinds of speech. Because, as he put it in a pioneering article he co-authored in 1990:

In a free market economy, the ability to give and receive information about commercial matters may be as important, sometimes more important, than expression of a political, artistic, or religious nature.

And there you have it: Watching a commercial about asphalt? Vital to your well-being and sense of self. Deciding what books you read during your dinner break? Not so much.

Government regulations of advertising? Terrible violation of free speech. Telling a worker what she can read? Market freedom.

 

16 Comments

  1. Billikin December 8, 2017 at 9:49 pm | #

    “I control what you read,” he said, “what you write, when you eat. You don’t sleep if I say so. You don’t shit unless I say so. Do you understand?”

    Some libertarian, huh?

  2. Allen Simon December 8, 2017 at 10:05 pm | #

    Obviously there’s a legal difference between government coercion and employer coercion, even if it seems to clash philosophically. Many right-wingers think employers be able to have all kinds of control over their employees.

  3. Sandwichman December 8, 2017 at 10:09 pm | #

    Sounds like libertarianism me. It’s the Great Chain of Liberty. Starts at the top of the heap with 100% liberty and works its way down to the bottom where there is none.

    • Jim December 9, 2017 at 4:52 pm | #

      Exactly! Libertarianism has always been about extreme laissez-faire market tyranny with no regulations to control for monopoly, fraud, dangerous products and services, etc. Libertarianism, especially in practice, is rarely about social, religious and cultural freedom for everyone.

  4. Chris Morlock December 8, 2017 at 10:16 pm | #

    Noam Chomsky is famous for pointing out that what passes for a Libertarian in the USA is essentially nothing like a Libertarian in the rest of the world. Libertarians, including the early revolutionary war era “patriots” oft cited by the US Libertarian movement, were in fact deeply anti-corporate and anti-establishment and anti-market in general. Why in USA it became ok to think of “Libertarian” as being a pro-market person who is down with abortion and gay people is as sad as the rest of American politics.

    It’s essentially an Ayn Rand movement masquerading as a Libertarian. Their penchant for touting 1st amendment issues obviously only applies to the government, which is in and of itself a contradiction to the principle. The bill or rights should apply to the private world as well, something they avoid like the plague.

    • jrjh December 9, 2017 at 1:42 am | #

      My understanding is the Libertarian in the U.S. can trace it’s roots back to a more individualist anarchist philosophy, stemming from the works of Max Stirner to Josiah Warren. The more communal aspects of anarchism or libertarianism that took hold in Spain for example were related to Kropotkin and Bakunin, but even here there was a divide between communal (rural) and collectivists (urban) tendencies. After WW2, the right in the US co-opted the individualist form of anarchy and revolutionary spirit, remaking it to its current Randian form. They did the same thing with class struggle, right? Liberal elites vs working man.

      • Anarcho December 11, 2017 at 7:13 am | #

        Yes, well, they claim to trace their ideas back to the individualist anarchists of the nineteenth century, but they are very selective about what they take.

        The American individualist anarchists, like other anarchists, called themselves socialists — and opposed the State because they considered it an instrument of the capitalist and landlord class. They wanted to abolish it because the bosses used it to better exploit the workers:

        http://anarchism.pageabode.com/afaq/secGcon.html

        As for the term “libertarian,” the right in American basically stole it from the left. Murray Rothbard admitted it:

        http://anarchism.pageabode.com/afaq/160-years-libertarian

        An French anarchist coined the term in 1857 to attack Proudhon for being against the tyranny of bosses but in favour of the tyranny of husbands. Anarchists took up the term and by the 1890s it was an accepted alternative for anarchist. Then, in the 1950s, the American right decided to steal it:

        “One gratifying aspect of our rise to some prominence [in the late 1950s] is that, for the first time in my memory, we, ‘our side,’ had captured a crucial word from the enemy […] ‘Libertarians’ […] had long been simply a polite word for left-wing [sic!] anarchists, that is for anti-private property anarchists, either of the communist or syndicalist variety. But now we had taken it over, and more properly from the view of etymology; since we were proponents of individual liberty and therefore of the individual’s right to his property.” (Murray Rothbard, The Betrayal of the American Right, 83)

        So there you have it — not only are they in favour of private tyranny, they are complete hypocrites because they say they are against stealing, but they stole their label!

  5. David Jacobs (@leonblum) December 8, 2017 at 10:29 pm | #

    When will the libertarian defense of sexual harassers begin? If sweatshop conditions manifest the free choice of workers, won’t the libertarian default position be to deny coercion in these cases as well?

    • Andrew Cady December 10, 2017 at 12:50 am | #

      David you will definitely be interested in this:

      http://crookedtimber.org/2012/05/29/fuck-me-or-youre-fired/

      That references another Corey Robin blog post, as it happens, but I’m not linking it so you can listen to leftists. Go see what the libertarians say about the issue.

  6. Jim December 9, 2017 at 12:15 am | #

    OMG, this guy is clearly a sexual pervert and an intellectual fraud. It’s so often these “conservatives” have really serious social problems across the board whether sexual, empathetic or altruistic/societal.

  7. John Maher December 9, 2017 at 12:31 am | #

    Koz called Sea Shepherd “pirates”. Longstanding patriarchal association between those who enanble the extraction and killing of animals and sexual predation.

    The signs were there in 2008:

    The chief judge of the federal appeals court in California, Alex Kozinski, has contributed to a Web site that featured sexually explicit materials, The Los Angeles Times reported on Wednesday.

    The site, now disabled, included a video showing a sexually aroused animal, a photograph of naked women painted to look like cows and images of masturbation and public sex . .

    Why is it that Ameican media is suddenly woke to this open secret in general?

  8. Joe S Walker December 9, 2017 at 11:07 am | #

    It’s only necessary to scratch a libertarian’s personal comfort to uncover the fascist beneath.

  9. Camembert December 9, 2017 at 10:53 pm | #

    It’s not a coincidence that the Libertarian was mean to women. That’s their entire reason for living.

  10. Edward December 10, 2017 at 2:39 pm | #

    I hope Kozinski isn’t a typical Libertarian. What depressing hypocrisy.

  11. PC February 28, 2018 at 3:19 pm | #

    Yes, and Swift was arguing that we should literally eat the flesh of children. Does the poster know how to read and interpret words? Do the commentators? This is the scariest thing I’ve seen from a scholar of intellectual history (maybe I’m reading this wrong but….).

    Reputationally, I had heard nothing but good words in the legal community about the character of this former federal judge. The post does nothing to retract from that reputation, though it does show him to be crude and a little obscene – not grounds for sexual harassment as such and certainly not grounds for firing the guy. We need more smart judges. We lost one.

    The judge was obviously joking. He’s joking ironically on the work clerks do for judges such as Kozinsky (who was known as a feeder for the Supreme Court for clerkships). His profanity and the sexual reference is unfortunate, but not beyond the pale. It’s crude and perhaps inappropriate. It’s not uncorrectable. My impression was that there was other aspects, such as pornography on his computer (though this is only my fading memory of this report) that would justify his resignation. I have heard no concrete claim of sexual harassment. If the clerk felt this was harassment, that’s one thing. But the interaction, though crude and sexualized and therefore warranting sanction, itself does not substantiate that claim absent comments from the clerk herself. What I liked about clerking in a prestigious clerkship and about working with attorneys of high status (this is the environment the clerk was working in) was precisely the lack of doltishness and the prohibition on regular speech from brilliant and sometimes mildly eccentric attorneys imposed by dolts who cannot tell the difference between satire, irony, a joke and a serious statement. To take these statements as literally true – unless you are claiming Kozinsky was a madman which contradicts everything I have heard about him from former clerks etc….- reveals a stupidity on the part of the readers that is scary. Is “workplace” interaction to be dragged down to the lowest common denominator in the manner the commentators and the poster, apparently, exhibits? I’d rather die than suffer to work in such an environment. Maybe Kozinsky did go batty and is a raving lunatic running around his office making literal statements confirming his role as master over the slave-clerks. But I doubt it.

    I’ve had Wall Street lawyers who are of unimpeachable character and the nicest of people throw briefs at me, call my analysis stupid with also being drawn down severely for wasting the partners time with sub-standard analysis, and jokes about this that and the other thing that would cause, say, a pencil pusher in the California state union to be ran out as a racist danger to the nation. I was always thankful I didn’t work with PC idiots who can’t read a book, a statute, or a document intelligently.

    Also, to try to connect his jurisprudence with this stupid interpretation of these comments is ridiculous. You can criticize his jurisprudence but as I recall Kozinsky was no Easterbrook and was not as susceptible to being a pro-capitalist ideologue. This is a separate claim in any case.

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